LWZ115 Lecture Notes - Lecture 11: Representative Democracy, Asset Forfeiture, William Gummow
Sue v Hill (1999) 199 CLR 462
s44 Any person who -
(i) Is under any acknowledgement of allegiance, obedience, or adherence to a
foreign power, or is a subject or a citizen or entitled to the rights or privileges of a
subject or citizen of a foreign power: …
shall be incapable of being chosen or of sitting as a senator or a member of the
House of Representatives.
“Whilst the text of the Constitution has not changed, its operation has. …The
Constitution speaks to the present and its interpretation takes account of and moves
with these developments.” [per Gleeson CJ, Gummow and Hayne JJ at 78]
The ACT marriage case
The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55:
s51 The Parliament shall, subject to this Constitution, have power to make laws for
the peace, order, and good government of the Commonwealth with respect to: -
(xxi.) Marriage:
- The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55
The Marriage Act (Cth) 1991:
s5(1) Defintion- "marriage" means the union of a man and a woman to the exclusion
of all others, voluntarily entered into for life.
The Marriage Equality (Same Sex) Act (ACT) 2013:
s3 Defintion"(a) the union of 2 people of the same sex to the exclusion of all
others, voluntarily entered into for life; but
(b) does not include a marriage within the meaning of the Marriage Act 1961
(Cwlth)."
“… there is no warrant for reading the legislative power given by s 51(xxi) as tied to
the state of the law with respect to marriage at federation. Tying the ambit of the
head of power to the then state of the law would fail to recognise that, …it is
necessary to construe the Constitution remembering that "it is a Constitution, a
mechanism under which laws are to be made, and not a mere Act which declares
what the law is to be". [at 19]
Questioned the utility of adopting a ‘single, all embracing theory’ of constitutional
interpretation [at 14]
Further ‘rights’ under the constitution
Acquistion of property ‘on just terms’
s51 (xxxi.) The acquisition of property on just terms from any State or person for any
purpose in respect of which the Parliament has power to make laws
A limitation on Commonwealth power only:
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Document Summary
Sue v hill (1999) 199 clr 462. (i) is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: . Shall be incapable of being chosen or of sitting as a senator or a member of the. Whilst the text of the constitution has not changed, its operation has. Constitution speaks to the present and its interpretation takes account of and moves with these developments. [per gleeson cj, gummow and hayne jj at 78] The commonwealth of australia v the australian capital territory [2013] hca 55: S51 the parliament shall, subject to this constitution, have power to make laws for the peace, order, and good government of the commonwealth with respect to: - The commonwealth of australia v the australian capital territory [2013] hca 55.
